Rape Shield Law

A research paper about why the rape shield law should remain in affect.

Submitted:May 16, 2013
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A Victim's Rights or an Unfair Trial?

Kaitlin Rhode

In the United States, rape is one of the most unreported crimes.
Many victims are afraid to come out with their abuse because they
know they may be humiliated in court. Good defense lawyers often
make the accuser seem promiscuous, and suggest that the victim
consented to the sexual abuse. In order to protect these victims,
and promote justice, the rape shield law needs to remain in
effect. Without the law, defense lawyers would tear down the
victim on the stand, and fewer victims would receive justice.

When an emotionally and physically damaged rape
victim sits on the stand in front of his or her abuser, the last
thing he or she wants is to be shamed by their sexual history.
Not only are victim's sexual pasts irrelevant in a rape case, but
their past is not necessary if the accused was really guilty.
When anyone says no it means no, regardless of
how many times they may have said yes in the past. The
defense lawyers constantly seek to damage the accuser's
credibility or indicate that he or she was likely to have
complied with the abuse, no matter the extent of it.

Critics argue against the rape shield law by saying
it violates a defendants' rights. They point out that while the
defendant's sexual history is open to discussion, an accuser's is
not. Dan Recht, former president of the Colorado Criminal Defense
Bar, states, "It is really unfair that a defendant's sexual past
comes in much more readily than an accuser's sexual past, even
though the defendant has a whole lot more to lose" (Rape Shield
Laws, 2004). He makes a good point, but hasn't the victim already
lost enough? The defendant, if guilty, has already physically and
emotionally scarred the victim. If we allow defense attorneys to
dig out a victim's sexual past to inflame the jury against the
victim and turn the jury in favor of the defendant, the victim is
only further humiliated and damaged in front of the public
spectacle of a court room. John Rhode, a defense lawyer from
Antigo, Wisconsin says that, "Balancing the victim's rights and
the accused rights is the right thing to do. Usually the danger
of inflaming the jury's prejudices outweighs the small amount of
relevance in knowing his or her sexual history. Emotions should
not be a part of trial" (Rhode, 2012) (Greaney, 2010).

Other people who try to tear down this law state that
an accused should have at his or her disposal all the evidence to
prove his or her innocence. By giving the accused everything they
need to verify their innocence, the court is giving them the
tools to make their case stronger. However, if an accused is
really guilty, it is troubling that the court may allow them to
introduce the evidence that helps them get away with the offense.
A victim has shown a lot of strength and confidence by
confronting their abuser. If a court allows the defense to
introduce evidence about the victim's sexual history, the court
is not protecting the victim. The United States needs the rape
shield law in order to shield the victim and to make sure that
the abuser does not get away with the crime he or she has
committed.

Before the rape shield law, rape victims were forced
to talk about the intimate details of their sex lives during
trials, an experience that supporters say only added to their
ordeal. The victims were being terrorized in the courtroom. They
would get on the witness stand and be asked about every single
sexual act they had ever committed with anyone, in grotesque
detail. John Rhode says that, "Without the rape shield laws, good
defense lawyers would turn the jury to the side of the defendant
by making the victim seem like a prostitute" (Rhode, 2012). Rape
victims are mistreated in a way that victims of no other crime
are. They need to be protected from irrelevant, harassing
questioning that has little, if anything to do with the issues
being tried. If the rape shield law was not in place, these
victims would be continuously ridiculed on the stand and
embarrassed in the court (Rape Shield Law, 2012) (Understanding
Rape Shield Laws).

The Rape Shield law prevents defense lawyers from
using a victim's sexual history and lifestyle against him or her
in court. Such evidence tends to prejudice jurors against the
accuser, despite the fact that a victim's sex life has little
bearing on whether he or she was the victim of rape. Defense
lawyers have good reason to want to provide jurors with as much
information as possible about victims' sex lives. Social-science
research suggests that jurors are as likely to assess defendant's
guilt based on their view of the victim's virtue as on physical
evidence (Welty, 2009).

This law also serves to embolden victims to come
forward and report crimes against them. Rape continues to be the
least reported of all crimes (Welty, 2009). By reassuring victims
that their reputations will be protected in trial, the rape
shield law encourages them to speak out. By prohibiting the
introduction of an accuser's sexual history, rape shield laws
restrict the evidence discussed in trial to what is strictly
relevant to the crime committed. Preventing prejudice from
influencing a verdict is the most important function of the rape
shield laws. They are a protection of the truth-seeking process.

These laws need to remain in effect so that the rape
cases stay as fair and unbiased as possible. The courts need to
protect rape victims and uphold such laws in order to allow
victims to speak out about the violent acts that have been done.
The victims have already been through enough suffering and mental
damage. They do not need to be further harmed by being ridiculed
on the stand by defense attorneys. The rape shield laws need to
remain in effect so innocent victims can receive justice.